Baer v. Schaap , 171 Neb. 347 ( 1960 )

Simmons, C. J.

This is an action for damages for personal injuries. Our first decision in this case is found in Baer v. Schaap, 168 Neb. 578, 97 N. W. 2d 207. A rehearing was granted. The motion for rehearing presents only two questions. The first is the sufficiency of the evidence to justify submitting the cause to the jury. We now find it necessary to decide only that question. We conclude that our former decision was in error in holding the evidence sufficient. That decision is set aside.

We reverse the judgment and remand the cause with directions to sustain the motion for a directed verdict.

We refer to our former opinion and the dissent for a more detailed general statement of the issues and facts.

We refer herein to plaintiff as Baer, who was the injured employee of defendant Parsons Construction Company. We refer to defendant Sehaap as Speedway, as he operated under the name of Speedway Scaffold Company. Appellee Parsons Construction Company is referred to as Parsons. It is in the case seeking subrogation for compensation payments to Baer. To that extent Parsons’ interests and Baer’s interests are identical.

Baer alleged that Speedway “erected, set in place, and rented to” Parsons certain scaffolding around a building being remodeled and that the scaffolding “thus erected” was “not erected in a safe, suitable and proper manner,” so that a plank thereon gave way and dropped plaintiff to the sidewalk below to his great injury. That allegation presented the essential issue and limits the scope of the inquiry.

We are presented with two difficulties appearing in the record. The accident involved herein occurred in September 1954. The petition was filed in June 1955. The cause was at issue in February 1956. It was tried in January 1958 on amended pleadings. The delay in bringing this matter to trial obviously accounts for some if not all of the confusion, lack of memory, and contradictory statements of witnesses. Trial courts could avoid this sort of a situation by insisting on a reasonably prompt trial in these cases.

Repeatedly in this record witnesses refer to exhibits, pointing out that about which they are testifying, and “indicating” it. We have repeatedly criticized trial courts for permitting such a record to be made. It is difficult, and at times impossible, for a reviewing court to read such a record and do more than speculate as to what lawyers, court, and jury had indicated to them. We again criticize the procedure here in that regard.

The first question here is: Did Speedway place the plank in the scaffold that upended and caused Baer to fall?

The parties are in general agreement that Speedway built a scaffold for Parsons; that Parsons accepted and used it; that Baer was an employee of Parsons; and that a plank on which he was standing gave way, causing him to fall to his injury.

There is further general agreement that the scaffolding was built of steel uprights, 7 feet apart lengthwise, and 5 feet apart from side to side. The uprights were connected by horizontal steel bars upon which the scaffold floor boards were placed.

It was agreed at the bar here and in the briefs that the scaffold was erected about 2 feet from the building and that steel brackets were placed on the scaffold to reach from the inside upright to the building. These were in the shape of a right-angled triangle with the top arm at right angles to the building and about 22 inches in length. Speedway floored the scaffold proper with planks 2 inches thick and either 10 or 12 inches in width, and 14 and 16 feet long. This becomes important in the light of evidence to be cited later.

It is undisputed that Speedway put 16-foot-long planks side by side across two of the 7-foot spaces between the supporting uprights so that they extended 1 foot at each end beyond the crossbars on which they rested. Then two spaces were skipped and another side-by-side row of 16-foot-long planks were placed as before. Then 14-foot-long planks were placed bridging that opening. These lapped over the 16-foot planks 1 foot at each end.

Speedway’s construction man testified that every one of the 14-foot-long planks was nailed to the 16-foot plank beneath it. Parsons’ superintendent inspected the scaffold and testified that he found from 5 to 10 percent of the planks not nailed, and nailed them. It is, then, undisputed except by argument, that before Parsons began the use of this platform every 14-foot plank which Speedway put in the scaffold was nailed to the 16-foot plank beneath it and that the overlap was 1 foot.

We must accept as a fact from the jury’s verdict that Speedway did not nail all of the planks and that Parsons undertook to do so before it permitted its use by workmen. Parsons accepted the scaffold as satisfactorily constructed.

At this point the purpose of the nailing can be recited. It is likewise undisputed and testified to by a witness for Baer that the planks were nailed if employees were going to work on them for a long time and should be nailed if it was a matter of weeks and days “because they will work” or slide back and forth so that “one end may drop.” It was in the interest of good safety to nail them down.

We are, then, confronted with a record that establishes without dispute that every 14-foot plank was above the end of a 16-foot plank and any “working” of it would be against the force of gravity and that the 14-foot plank would have to “work” at least 1 foot before it could upend and fall.

We are mindful of the testimony of Baer’s witness that he measured the plank that flipped up as 14 feet in length so that if it slipped “an inch or so either way” it would upend and fall.

From this evidence it is argued here that the plank which upended had only a 1-inch overlap and had to slip only that distance before it would give away on its loose end.

The fallacy of this argument is that under the undisputed evidence the plank, if put there by Speedway, would have had to slip at least 1 foot before it would upend and fall when someone got on its short end, there being no evidence that any other plank on the platform was disturbed when the one plank gave way. There is no evidence that Speedway put 14-foot planks at this point in any other position than overlapping 16-foot planks. No witness testified that the plank that upended had been resting on a 16-foot plank.

Baer’s witness and Parsons’ superintendent testified to the fact that the planks were nailed together; and no one testified that a- nailed plank will “work.” We are not unmindful of the fact that Baer’s witness testified that there were neither nails nor nail holes in the plank that upended. From that evidence, however, no inference can arise that Speedway placed this plank in the scaffold.

Were there side brackets put on the scaffold by Speedway? It is conceded here that the answer is “Yes.” Baer testified that he was an experienced construction man, had erected and used scaffolds for years, and was an experienced bricklayer and foreman at the time of the accident.

The conceded physical facts are that the scaffold was to be used in removing and repairing the wall of the building and that in part an overhanging cornice was to be removed. Yet Baer testified, in effect, that there were no brackets on the scaffold, as did one other of his witnesses, as both testify that it was the inside plank on the main platform that gave way. Other witnesses testify as to the existence of the brackets.

Were planks placed upon the brackets? Speedway’s construction man testified as a witness for both Baer and Speedway. He testified that he placed one row of planks on the brackets, and “about centered” on the brackets. The plank so centered was either 10 or 12 inches wide. So that if only 10 inches wide the planks so placed by Speedway left an opening on either side of not to exceed 7 inches, or as stated by the witness, “a small opening.” Baer’s witness testified that the plank which upended was 2 inches by 10 inches.

Were there other planks placed on the brackets? Parsons’ construction superintendent testified that he placed a string of planks on the brackets “to hold the plywood.” At one point he described them as 2 inches by 10 inches. At another point he says 2 inches by 8 inches. That evidence is undisputed. Parsons’ man says it did not “change the structure” of the scaffold. But if Parsons put this row of planks there then it has to follow that the Speedway row of planks was moved over and to the inner or outer side of the brackets to make room for it. The construction, of the scaffold had to be changed by Parsons after Speedway had delivered it to them.

This conclusion is arrived at also by another bit of undisputed evidence. • ■

A plywood apron 2 feet wide was placed on the brackets and against the budding. The entire platform and plywood apron was then covered by canvas. Baer testified that the plywood was notched so as to fit over the posts of the scaffold. Otherwise brackets being absent, according to his testimony, the plywood would have no support. Parsons’ man testified that he rested the plywood on the row of planks and that it then came to 1% or 2 inches from the planks'on the inside of the uprights. It follows that if he nailed the plywood !to planks it was not those placed there by Speedway unless the Speedway planks had been moved after Parsons accepted complete control of the scaffold.

The canvas and plywood were removed by Parsons either the day of or the day before the accident! Baer assisted in the removal. The evidence is important here because it shows that there were neither “days” nor ' “weeks” that employees were using the exposed planks so as to cause them to “work.” The evidence is that the plywood was nailed to the planks. There is no evidence nor contention that the plywood “worked” either way, hence it would necessarily follow that any “working” of the plank had to occur after the plywood was removed.

Which plank fell? All witnesses agree that it was the one nearest the building. It struck the building, lodged in one of the brackets, and nearly struck a fellow workman looking over the edge of the roof.

Baer and one of his witnesses testified it was the inside plank of the scaffold proper. He now recedes from that evidence. If it was the plank nearest the building and on the brackets it could be or could not be a plank put there by Speedway.

There is no identification of it as such as a plank put there by Speedway. We are not unmindful of one bit of evidence in this regard. Parsons’ man testified that the plank was a Parsons’ plank. On rebuttal a cplarm adjuster for Parsons’ insurance carrier was called as a witness. He testified that he and Parsons’ superintendent had talked about who had erected or constructed the scaffolding and that Parsons’ man said Speedway had installed the plank that fell. This was admitted over objection for purposes of impeachment. The court so stated and counsel for Baer replied that that was correct.

The rule is that while evidence admitted generally is in the case for any legitimate purpose, evidence which is offered and admitted for a limited purpose cannot be used for another and totally different purpose. Where, by express ruling, it is limited to one purpose, without exception, it cannot be used for another purpose. Kucaba v. Kucaba, 146 Neb. 116, 18 N. W. 2d 645.

It is said here that the jury was justified in disregarding the testimony of Parsons’ superintendent because he testified that it was a Parsons’ plank that upended and a witness testified that the superintendent had earlier said it was a Speedway plank.

If we are to put aside all of the testimony of this witness as to that subject matter as untrue, it leaves testimony of witnesses for Baer, including himself, in hopeless confusion.

Baer and one of his witnesses testified that there were no brackets on this scaffold. The undisputed testimony otherwise is that there were brackets. It was conceded at the bar here that there were brackets. The falling plank lodged in the brackets and did not reach the ground. Baer testified that there were planks put on the principal scaffold only. The evidence shows and it is admitted at the bar here that there were six rows of planks (one on the brackets), as testified to by Speedway’s construction man, a witness for Baer. Baer testified that the plank that upended was the one nearest the building. If his testimony is accepted, Baer was working that afternoon when the accident occurred at a height of 40 feet, washing down the wall with an open space of approximately 2 feet between him and the building. This presents a rather improbable situation.

However, it is undisputed also that the plank that fell struck a slight projection on the building and that in its partial revolution, with the crossarm or bracket as a pivot, it nearly hit a witness for Baer looking over the roof. There would have been no lodging in the nonexistent bracket under those circumstances.

No matter whether this record is read from the viewpoint of the evidence that went to the jury, or from the viewpoint of Baer’s evidence, excluding Speedway’s witness (Parsons’ superintendent), the result is one of hopeless confusion out of which an answer can be drawn only by confused speculation.

These rules, then, become applicable: “ ‘When a witness gives testimony which as to material facts is in such obvious and irreconcilable conflict that, if part of it be true the rest must be false, it cannot be accepted as the basis of a judicial conclusion.’ ” Butler v. Reed-Avery Co., 186 Md. 686, 48 A. 2d 436. See, also, Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A. 2d 464; Hegarty v. Berger, 304 Pa. 221, 155 A. 484; Campbell v. State, 203 Md. 338, 100 A. 2d 798.

“Where there are two or more possible causes of injury, for one or more of which defendant is not responsible, plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as of the other, plaintiff cannot recover.” 86 C. J. S., Torts, § 59, p. 984.

“* * * the causal connection between defendant’s act or omission and. the injury must not be left a matter of surmise or conjecture, and cannot be established, by evidence which is merely consistent with or indicates a mere possibility.or probability thereof, as.by evidence which merely shows two or more possible causes of the injury, for-vnot all of which defendant , is responsible; or which' leaves it a matter of speculation or conjecture as between such causes; or which -is equally consistent with the theory, that the injury resulted from a cause for which. défendant is not responsible;; * * *.” 65 Co., J. S., Negligence, § 244, p. 1092.

Here, as we read this evidence, the answer to the question of “was it a Speedway- plank that upended” is a matter :of speculation and conjecture. Baer’s- evidence shows that it could have'been' and could not have been. -That is not enough.

• A restudy of this evidence causes us to apply the rule that the burden of proving a cause of action is not sustained' by evidence from which negligence can only be surmised or conjectured. Mirnick v. Beatrice Foods Co., 167 Neb. 470, 93 N. W. 2d 627.

We also apply the rule that in every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether:there is any upon which a jury can properly proceed to find a verdict for the party producing, it, upon whom the burden of proof is imposed. Weston v. Gold & Co., 167 Neb. 692, 94 N. W. 2d 380.

Here the evidence as to who placed the upending plank in the platform is purely circumstantial. We apply the rule that where several inferences are deducible from facts presented, which inferences are opposed to each other but equally consistent with the facts proved, the plaintiff does not sustain his position by a reliance alone on the inference which would entitle him to recover. Shamblen v. Great Lakes Pipe Line Co., 158 Neb. 752, 64 N. W. 2d 728.

At the conclusion of Baer’s evidence' and again at the .conclusion of all of the evidence, Speedway moved for a directed verdict. Speedway later moved for judgment notwithstanding the verdict. • These motions were overruled;

The situation calls for the application of the rule that in a case where a motion has been made,- at the close of all of the evidence for a directed verdict,- which motion should have been sustained but was overruled and the case was submitted to a jury which returned a verdict contrary to the motion, and a motion for judgment notwithstanding the verdict is duly filed, it is the duty of the court to sustain the motion and render judgment in accordance with the motion for a directed verdict. Corbitt v. Omaha, Transit Co., 162 Neb. 598, 77 N. W. 2d 144.

The judgment of the trial court is reversed' and the cause remanded with directions to sustain the motion for a directed verdict.

Reversed and remanded with directions.